Boersma v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS overruling Plaintiff's Statement of Errors and entering judgment in favor of Defendant. Objections to R&R due by 3/21/2018. Signed by Magistrate Judge Kimberly A. Jolson on 3/7/2018. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHRISTINA D. BOERSMA,
Plaintiff,
v.

Civil Action 2:17-cv-724
Judge Algenon L. Marbley
Magistrate Judge Jolson

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Christina D. Boersma filed this action seeking review of a decision of the
Commissioner of Social Security (“Commissioner”) denying her Title II Disability Insurance
Benefits and Title XVI Supplemental Security Benefits applications. For the reasons that follow,
it is RECOMMENDED that Plaintiff’s Statement of Errors (Doc. 12) be OVERRULED, and
that judgment be entered in favor of Defendant.
I.

BACKGROUND
Plaintiff previously filed applications for Title II and Title VII benefits on September 8,

2011, alleging disability onset on August 15, 2008. On July 11, 2013, an administrative law
judge denied those applications. (Tr. 144–52, PAGEID #: 189–97).
Plaintiff filed her applications for benefits, which are the subject of this adjudication, on
July 25, 2013, alleging that she has been disabled since August 15, 2008, due to possible
diabetes, fibromyalgia, scoliosis, nerve problems, bulging disc, migraines, radiculopathy, and
degenerative disc disease. (Tr. 290–98, PAGEID #: 337–45; Tr. 298–306, PAGEID #: 345–53;
Tr. 203, PAGEID #: 249). Plaintiff later amended her onset date to August 1, 2013. (Tr. 101,

PAGEID #: 145). Plaintiff was denied benefits on September 26, 2013 (Tr. 203–18, PAGEID #:
249–64), and upon reconsideration (Tr. 222–33, PAGEID #: 268–79). Plaintiff filed a Request
for Hearing (Tr. 234–35, PAGEID #: 280–81), and an administrative hearing was held on
February 11, 2016 (Tr. 97–140, PAGEID #: 141–84). Administrative Law Judge Deborah E.
Ellis (the “ALJ”) denied Plaintiff’s claim in a decision issued on June 24, 2016. (Tr. 52–74,
PAGEID #: 96–118). The Appeals Council denied Plaintiff’s request for review, adopting the
ALJ’s decision as the Commissioner’s final decision. (Tr. 1–6, PAGEID #: 45–50).
Plaintiff filed this case on August 17, 2017 (Doc. 1), and the Commissioner filed the
administrative record on October 23, 2017 (Doc. 9). Plaintiff filed a Statement of Specific Errors
on December 8, 2017 (Doc. 12), and the Commissioner responded on January 16, 2018 (Doc.
13). Plaintiff did not file a reply.
A. Relevant Hearing Testimony
Plaintiff testified at the administrative hearing. For the past four years, she has lived in a
two-story house, with the bedrooms upstairs. (Tr. 106–107, PAGEID #: 150–51). She resides
with her husband, her four children (ages five, six, eight and thirteen), and her brother. (Tr. 107–
108, PAGEID #: 151–52). The family has a dog and a cat; taking care of the dog is the
children’s responsibility. (Tr. 107, PAGEID #: 151). Plaintiff’s husband works a later shift and
is normally gone from the house from 3:00 p.m. to 2:00 a.m. (Id.). Plaintiff’s youngest child
was in preschool at the time of the hearing, but, in earlier years, Plaintiff took care of him with
help from her twenty-seven-year-old brother. (Tr. 108, PAGEID #: 152). Plaintiff testified that
her brother is developmentally disabled and requires “verbal care” in that she tells him what to
do. (Id.).

2

Although Plaintiff has a valid driver’s license, she drives infrequently because, according
to her testimony, she is afraid her foot is going to go numb while driving. (Tr. 108, PAGEID #:
152). She testified that this has happened before, but she has never had an accident. (Tr. 109,
PAGEID #: 153). Plaintiff completed high school without difficulty. (Id.). She had no training
after high school and began working in the fast food industry, where she worked for ten years,
mostly as an assistant manager. (Id.) Plaintiff described her job as involving reconciling the
drawers, handling money, making the deposit, cleaning, and helping make food and take orders
(Tr. 110, PAGEID #: 154). She described herself as “a crew person with a manager’s tag.” (Id.).
She testified that she was responsible for interviewing and hiring staff as well as disciplining
them. (Tr. 110–11, PAGEID #: 154–55).
Her employment ended in 2008 when she quit her job after a dispute with a manager.
(Tr. 111, PAGEID #: 155). She testified that she did not attempt to find other employment
because she was three-months pregnant with her third child. (Id.). Plaintiff testified that she did
not return to work after that because she was “home with the kids.” (Id.). She additionally
testified that the “pain started to settle in after my third pregnancy,” and by her fourth pregnancy,
she “was in really bad shape” and “never returned back to work.” (Tr. 111–12, PAGEID #: 155–
56). Plaintiff testified that she started seeking help from doctors in 2010. (Tr. 112, PAGEID #:
156). Regarding her pain, Plaintiff testified that she suffers from pain in her back and hips and
has pressure points in her upper shoulders. (Tr. 112, PAGEID #: 156). In response to the ALJ’s
questioning, Plaintiff testified that she has two to four headaches per month, and she described
her migraine headaches as lasting “a good hour to two hours,” and as her head being sore for
hours thereafter. (Tr. 127, PAGEID #: 171).

3

During the hearing, the ALJ asked Plaintiff a number of questions about Plaintiff’s
physical abilities based upon her medical records. For example, the ALJ relied on specific
medical records to ask the following:
Q
All right. So let’s start out with B-21-F. . . . [Dr. Lindsay] says here, “I
haven’t seen her for a while. She reports to me she can’t shave her legs, but they
were shaved; she can’t do her hair, but her hair is up; says her legs are swollen,
but there’s no edema.
And then there are also notes from B-22-F that you were, told your physical
therapist that you were a little slower because you were so active with the kids
over the weekend.
There’s another note that you walked a lot over the weekend, and another one that
you were shoveling the driveway over the weekend.
A

Yes.

Q

So tell me about that.

A
I try to be as active as I possibly can. There is days that I do nothing but
lay around, but I like to be as active as I can for my children. As far as Dr.
Lindsay, my husband shaves my legs for me because I have a really hard time in
the bathtub. I do put my own hair up. It’s really hard for me to do that. It’s a
mess, but I do that on my own. I do try to walk at least a block or two when I’m
able to.
(Tr. 118, PAGEID #: 162).
The ALJ also questioned Plaintiff regarding her medication usage as opposed to exercise
to treat Plaintiff’s fibromyalgia. (Tr. 114–17, PAGEID #: 158–61). Plaintiff also testified that
she did not get along well with her one of her physicians, Dr. Lindsay. (Tr. 119, PAGEID #:
163).
A Vocational Expert (“VE”) also testified at the hearing. He testified that Plaintiff’s past
work as a manager for fast food services is generally performed at the light level of exertion, but
she performed it at the heavy level. (Tr. 133, PAGEID #: 177). The job is semi-skilled. (Id.).
The VE testified that an individual of the same age and with the same education and work
4

experience as Plaintiff, who could lift and carry, push and pull ten pounds frequently and less
than ten pounds occasionally; who could sit for a total of six hours during the day; who could
stand and/or walk a total of two hours during the workday; who should only occasionally climb
ramps and stairs and never climb ladders and scaffolds; who could occasionally balance, stoop,
kneel, crouch and crawl; who should avoid concentrated exposure to unprotected heights and
moving mechanical parts, extreme cold, extreme heat, and vibrations; who would be limited to
performing simple, routine, repetitive tasks, but not at an assembly line pace; and who would be
limited to tolerating few changes in the routine work setting; could not perform Plaintiff’s past
work. (Tr. 134, PAGEID #: 178).
The VE testified that the above described individual could perform sedentary unskilled
jobs such as letter addresser, document preparer, and surveillance system monitor. (Tr. 134–35,
PAGEID #: 178–79). The VE also noted that the tolerance for absenteeism in the jobs he had
cited would be no more than one day per month and no more than five days per a twelve month
period. (Tr. 136, PAGEID #: 180). He stated that during the initial probationary period as few
as two absences could result in dismissal. (Id.).
B. Medical Records
Neither Plaintiff nor the Commissioner summarized the relevant medical records in this
case. However, the ALJ aptly did so:
The claimant’s medical records indicate a history of treatment for fibromyalgia,
including medication, prior to the alleged onset date. (Ex. Bl F/7, 10-11; B2F/520). On August 1, 2013, the claimant went to the emergency room due to
fibromyalgia pain and a headache. (Ex. B3F/7). A positive trigger point was
noted in the right trapezius. (Ex. B3F/10).
At an examination in October 2013, the claimant had tenderness throughout her
normal fibromyalgia tender points. (Ex. B6F/17). However, she had full
strength in the extremities, and sensation was intact. (Ex. B6F/17). Her gait was

5

normal. (Ex. B6F/ 17). She reported that she continued to try to exercise for her
fibromyalgia. (Ex. B16F/ 18).
At a follow-up visit in November 2013, the claimant reported pain in her entire
body. (Ex. B6F/12). Upon examination, the doctor noted that she did not appear
to be in extreme pain. (Ex. B6F/13). There was tenderness throughout the upper
and lower extremities, as well as the paraspinal area. (Ex. B6F/13). However,
she had full strength and full range of motion of the extremities. (Ex. B6F/13).
The claimant received an acupuncture treatment at that time. (Ex. B6F/13).
In December 2013, the claimant reported no pain relief following acupuncture.
(Ex. B6F/7). She reported that the majority of her pain was in her legs, back and
hips at that time. (Ex B6F/8). Examination findings were consistent with
previous findings. (Ex. B6F/9). The doctor noted that the claimant sat
comfortably in no acute distress. (Ex. B6F/9). The claimant again underwent
acupuncture for her pain. (Ex. B6F/10).
Medical records from her family practitioner during this time show that she was
prescribed medication, including Vicodin, for her pain. (Ex. B8F). A note from
November 2013 states that she had been weaned off Vicodin for a short period
but that she could not tolerate the pain. (Ex. B8F/4). At a visit to the family
practitioner in March 2014, the claimant reported that she was doing well with
her pain medication. (Ex. B8F/19).
In October 2014, the claimant visited her family practitioner and reported that
she did not think she was making progress with her then specialist. (Ex. B14F/
11). She reported breakthrough pain in her legs and back. (Ex. B14F/11). The
doctor recommended that she wean off medication and consult another
specialist. (Ex. B14F/ 12).
In December 2014, the claimant consulted a rheumatologist regarding her
fibromyalgia and reports of joint and muscle pain. (Ex. B15F/2). Upon
examination, there were multiple positive tender points consistent with
fibromyalgia but no evidence of muscle weakness. (Ex. B15F/3). There was
also tenderness of the left wrist. (Ex. B15F/3). X-rays of the hands did not show
evidence of inflammatory arthritis. (Ex. B15F/4). The rheumatologist stated that
there was no evidence of inflammatory arthritis on examination and that the
claimant’s symptoms were consistent with fibromyalgia. (Ex. B15F/4).
In August 2015, the claimant visited one of her doctors and reported back pain
that radiated down her bilateral legs and swollen legs. (Ex. B21F/ 10). Upon
examination, the examining doctor noted an exaggeratedly antalgic gait. (Ex.
B21F/ 13). There was no edema of the lower extremities. (Ex. B21F/13). There
was tenderness of multiple tender points and across the lumbar paraspinal region.
(Ex. B21F/13). She also had limited range of motion of the lumbar spine. (Ex.
B21F/ 13). The doctor also noted that the claimant reported that she could not
6

shave her legs due to pain but that the claimant’s legs were shaved at the
examination. The doctor further noted that the claimant reported that she could
not care for her hair due to pain but that the claimant’s hair was up. (Ex.
B21F/13). The doctor advised her to exercise to treat her fibromyalgia pain.
(Ex. B21F/ 14).
The medical records also show that the claimant engaged in physical therapy for
her pain, especially her back pain. (Ex. B22F; B23F). She was discharged from
therapy in October 2015 and reported improved movement and strength. (Ex.
B22F/1 l). In October 2015, the claimant again consulted a rheumatologist, who
again determined that the claimant’s symptoms were due to fibromyalgia rather
than inflammatory arthritis. (Ex. 12F). Examinations showed positive tender
points but no synovitis. (Ex. B24F/3, 12).
….
The medical records show that on August 1, 2013, the claimant went to the
emergency room due to a headache and fibromyalgia pain. (Ex. B3F/7) . A CT
scan of the head was negative. (Ex. B3F/10; BlOF/22) . At a doctor visit in
October 2013, the claimant reported a history of migraines that were worsening.
(Ex. B6F/15). She reported increased headache pain with light and noise and
nausea associated with bad headaches. (Ex. B6F/ 16). She reported that she had
headaches up to three times per week. (Ex. B6F/ 16). The doctor prescribed
medication for her headaches, including Topamax and Imitrex. (Ex. B6F/18).
At a follow-up visit in November 2013, the claimant reported that her headaches
had improved. (Ex. B6F/12). The claimant’s medication was continued. (Ex.
B6F/ 13).
In November 2014, the claimant went to the emergency room due to headache
and nausea. (Ex. B12F/17). She was treated with medication and discharged in
good condition. (Ex. B12F/20- 21). The claimant returned to the emergency
room with a headache in December 2014. (Ex. B12F/9). She was again treated
with medication and reported improvement. (Ex. B12F/15). The claimant also
visited her primary care provider in December 2014, who restarted her
prescription for Topamax. (Ex. B14F/ 16).
In March 2015, the claimant visited her primary care provider and reported
migraine headaches for several weeks . (Ex. B14F/25). The doctor prescribed a
new medication for her headaches. (Ex. B14F/26). The claimant again went to
the emergency room due to migraine and nausea in August 2015. (Ex. B13F/ l).
She was treated with medication, and her symptoms resolved. (Ex. B13F/6).
(Tr. 61–64, PAGEID #: 105–108).

7

C. The ALJ’s Decision
The ALJ found that Plaintiff met the insured status requirements through December 31,
2013, and that she has not engaged in substantial gainful activity since August 1, 2013, her
alleged onset date. (Tr. 58, PAGEID #: 102). The ALJ determined that Plaintiff suffers from the
following severe impairments: “fibromyalgia, carpal tunnel syndrome, migraines, and organic
mental disorder . . . .” (Id.). At step three, the ALJ found that Plaintiff did not have an
impairment or a combination of impairments that met or medically equaled the severity of any of
the impairments in the Listings of Impairments. (Tr. 59–60, PAGEID #: 103–104). The ALJ
found that Plaintiff retained the residual functional capacity (“RFC”) to perform sedentary work,
except she:
. . . can occasionally climb ramps and stairs; never climb ladders, ropes, or
scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; frequently handle
and finger with the left hand; . . . should avoid concentrated exposure to
unprotected heights moving mechanical parts, extreme cold, extreme heat and
vibration. . . . can perform simple, routine, repetitive tasks but not at an assembly
line pace, and . . . can tolerate few changes in the routine work setting. . . . would
be absent from work up to one time per months but no more than five times per
year due to her migraines.
(Tr. 60, PAGEID #: 104). At step four of the sequential evaluation, the ALJ concluded that
Plaintiff was not capable of performing any of her past relevant work. (Tr. 66, PAGEID #: 110).
At step five, the ALJ found that Plaintiff was not disabled because there were a significant
number of jobs in the national economy which Plaintiff could perform, including the sedentary
unskilled jobs of letter addresser, document preparer, and surveillance system monitor. (Tr. 67–
68, PAGEID #: 111–12).
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), “[t]he findings of the [Commissioner] as to any fact, if

supported by substantial evidence, shall be conclusive. . . .” “[S]ubstantial evidence is defined as
8

‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th
Cir. 1994)). The Commissioner’s findings of fact must also be based upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To that end, the Court must “take into
account whatever in the record fairly detracts from [the] weight” of the Commissioner’s
decision. Rhodes v. Comm’r of Soc. Sec., No. 1:13-cv-1147, 2015 WL 4881574, at *2 (S.D.
Ohio Aug. 17, 2015).
III.

DISCUSSION

Plaintiff has assigned three errors.
A. Consideration of Fibromyalgia
In her first assigned error, Plaintiff disputes the ALJ’s consideration of her fibromyalgia
at steps three, four, and five of the sequential analysis. (Doc. 12 at 9–13). Social Security
Ruling (SSR) 12-2p articulates how the Commissioner determines if a claimant’s fibromyalgia
qualifies as a medically determinable impairment and also explains how fibromyalgia, as a
medically determinable impairment, factors into the sequential disability evaluation. 2012 WL
3104869 at *1–6. In this case, the ALJ found Plaintiff’s fibromyalgia to be a severe medically
determinable impairment. (Tr. 58, PAGEID #: 102). Plaintiff agrees with that determination but
disputes the ALJ’s further consideration of fibromyalgia in two ways.
First, Plaintiff disputes the ALJ’s consideration of fibromyalgia at step three of the
sequential evaluation. Step three of the sequential evaluation considers whether Plaintiff had an
impairment or combination of impairments that met or medically equaled an impairment listed in
20 C.F.R. Part 404. Subpart P. Appendix 1 (“the Listings”). 20 C.F.R. § 404.1520. “At step

9

three of the evaluation process, it is the burden of the claimant to show that [she] meets or equals
the listed impairment.” Thacker v. Soc. Sec. Admin., 93 F. App’x 725, 727–28 (6th Cir. 2004).
Accordingly, “[w]hen a claimant alleges that he [or she] meets or equals a listed impairment,
[she] must present specific medical findings that satisfy the various tests listed in the description
of the applicable impairment or present medical evidence which describes how the impairment
has such equivalency.” Id. at 728. The Sixth Circuit has emphasized that an ALJ is not subject
to a “heightened articulation standard” in considering the listing impairments.

Bledsoe v.

Barnhart, 165 F. App’x 408, 411 (6th Cir. 2006). Instead, the Court simply reviews whether
substantial evidence supports the ALJ’s findings. See id. In doing so, “a court must read the
ALJ’s step-three analysis in the context of the entire administrative decision, and may use other
portions of a decision to justify the ALJ’s step-three analysis.” Snoke v. Astrue, No. 10-1178,
2012 LEXIS 21930, at *19 (S.D. Ohio Feb. 22, 2012) (citing Bledsoe, 165 F. App’x at 411).
Although she did not assert this argument before the ALJ, Plaintiff now claims that her
fibromyalgia is equivalent to Listing 14.09(D), Inflammatory Arthritis.

To satisfy Listing

14.09(D), a claimant must prove the following:
Repeated manifestations of inflammatory arthritis, with at least two of the
constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary
weight loss) and one of the following at the marked level:
1. Limitation of activities of daily living.
2. Limitation of maintaining social functioning.
3. Limitations in completing tasks in a timely manner due to deficiencies in
concentration, persistence, or pace.
As an initial matter, even where a claimant suffers from fibromyalgia, an ALJ is not
required to consider Listing 14.09(D). Colon-Lockhart v. Comm’r of Soc. Sec., No. 14-14336,
2015 U.S. Dist. LEXIS 177229, at *16 (E.D. Mich. Dec. 29, 2015) (“SSR 12-2p, 2012 SSR
LEXIS 1 does not require the ALJ to consider whether Plaintiff met Listing 14.09(D).”); White
10

v. Colvin, No. 12-cv-11600, 2013 U.S. Dist. LEXIS 133038, at *36–37 (E.D. Mich. June 27,
2013) (same). Additionally, Plaintiff has not argued that the record shows that she suffers from
at least two of the “constitutional symptoms,” which include “severe fatigue, fever, malaise, or
involuntary weight loss.” (See generally Doc. 12 at 9–13). Such symptoms are a necessary
component of equaling Listing 14.09(D). See Colon-Lockhart, No. 2015 U.S. Dist. LEXIS
177229, at *16–17 (noting threshold requirements for satisfying Listing 14.09(D)).
Even more important, the ALJ expressly found that Plaintiff did not have marked
limitations of activities of daily living, of maintaining social functioning, or in completing tasks
in a timely manner due to deficiencies in concentration, persistence, or pace. To the contrary, the
ALJ found Plaintiff’s limitations in these areas to be only mild or moderate:
In activities of daily living, the claimant has mild restriction. The claimant
testified that she tries to stay as active as possible but that there are days that she
does nothing but lay down due to her physical symptoms. She testified that she
cooks, cleans, goes grocery shopping and does the laundry with help from her
brother. The claimant testified that before her youngest child started preschool
that she cared for the child without difficulty. In social functioning, the claimant
has mild difficulties. The claimant was agitated at a mental status examination.
(Ex. BSF/11). Other examinations showed depressed, anxious, angry and irritable
mood. (Ex. B20F/4, 7, 8, 10). However, the claimant maintained eye contact at
mental status examinations. (Ex. BSF/11, 13; B20F/4). In addition, the claimant
was cooperative at a psychological consultative examination. (Ex. B7F/3). With
regard to concentration, persistence or pace, the claimant has moderate
difficulties. At a psychological consultative examination, she successfully
completed tasks measuring recent, remote and immediate memory. (Ex. B7F/3).
However, she demonstrated difficulty with attention. (Ex. B7F/3). She was
unable to spell a five-letter word backward, and she was unable to calculate serial
sevens. (Ex. B7F/3). The claimant’s treatment records show that impairment of
memory, attention and concentration were not noted at some examinations. (Ex.
B20F/4, 7). Trouble concentrating was noted at other examinations, however.
(Ex. B20F/8, 10, 12).
(Tr. 59, PAGEID #: 103).

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For these reasons, the Court concludes that, although the ALJ did not expressly refer to
Listing 14.09(D), her decision reasonably explains why Plaintiff’s condition failed to satisfy the
Listing’s requirements.
Second, Plaintiff asserts that, when crafting Plaintiff’s RFC, the ALJ should have
accounted for the widespread pain Plaintiff’s fibromyalgia causes. However, as explained more
fully below, the ALJ in fact considered this pain. She simply concluded that it was less acute
than Plaintiff alleged. As such, there was no error.
B. Assessment of Plaintiff’s Symptoms
Plaintiff next asserts that the ALJ improperly relied on the absence of objective criteria to
find her allegations only partially credible. (Doc. 12 at 14–17). 1 The Court disagrees with
Plaintiff’s characterization of the decision.

First, the ALJ properly identified the relevant

standards and articulated the two-step process an ALJ must follow when considering whether
there is an underlying medically determinable “impairment(s) that can be shown by medically
acceptable clinical and laboratory diagnostic techniques–that could reasonably be expected to
produce the claimant’s pain or other symptoms.” (Tr. 60, PAGEID #: 104).
Next, the ALJ thoroughly considered Plaintiff’s allegations and compared them to the
record. In relevant part, the ALJ explained:
The claimant alleges that she has been unable to work since the alleged onset
date due to possible diabetes, fibromyalgia, scoliosis, nerve problems, bulging
discs, migraines , radiculopathy, degenerative disc disease, and memory loss.
(Ex. B2E; B4E; B6E). At the hearing, the claimant testified that she is unable to
work due to pain, including pain in her back, legs, hips and shoulders. She
testified that she cannot stand for very long and has difficulty sitting. In
1

The Court notes that Plaintiff relies on SSR 96-7p. That provision was no longer in
effect at the time of the ALJ’s decision. See SSR 16-3p, 2016 SSR LEXIS 4 (effective March
28, 2016, see SSR 16-3p, 2016 SSR LEXIS 4, Policy Interpretation Ruling Titles II and XVI:
Evaluation of Symptoms in Disability Claims). The Court thus considers whether the ALJ
properly applied SSR 16-3p as well as 20 C.F.R. § 404.1529 and SSR 12-2p.
12

addition, the claimant testified that she has migraine headaches. She testified that
she has two to four migraines per month, each lasting one to two hours. The
claimant also testified that she has pain, numbness, tingling and burning of her
wrist. Further, the claimant testified that she sees a mental health counselor once
per week. She testified that she does not see a psychiatrist.
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record for the
reasons explained in this decision.
In terms of the claimant’s alleged symptoms and limitations, the medical
evidence does not support any greater limitation to the claimant’s work-related
abilities than those in the residual functional capacity set forth herein. Regarding
the claimant’s fibromyalgia, the claimant’s medical records show treatment for
pain and findings of tender points at examinations. However, her allegations
regarding the intensity of her pain and the effect of her pain on her functioning is
not consistent with the medical records. The claimant’s movement was generally
normal at examinations. In addition, the claimant ’s doctors recommended
exercise to treat her pain.
The claimant’s medical records indicate a history of treatment for fibromyalgia,
including medication, prior to the alleged onset date. (Ex. Bl F/7, 10–11; B2F/5–
20). On August 1, 2013, the claimant went to the emergency room due to
fibromyalgia pain and a headache. (Ex. B3F/7). A positive trigger point was
noted in the right trapezius. (Ex. B3F/10).
At an examination in October 2013, the claimant had tenderness throughout her
normal fibromyalgia tender points. (Ex. B6F/ 17). However, she had full
strength in the extremities, and sensation was intact. (Ex. B6F/ 17). Her gait was
normal. (Ex. B6F/ 17). She reported that she continued to try to exercise for her
fibromyalgia. (Ex. B16F/ 18).
At a follow-up visit in November 2013, the claimant reported pain in her entire
body. (Ex. B6F/12). Upon examination, the doctor noted that she did not appear
to be in extreme pain. (Ex. B6F/13). There was tenderness throughout the upper
and lower extremities, as well as the paraspinal area. (Ex. B6F/13). However,
she had full strength and full range of motion of the extremities. (Ex. B6F/13).
The claimant received an acupuncture treatment at that time. (Ex. B6F/13).
In December 2013, the claimant reported no pain relief following acupuncture.
(Ex. B6F/7). She reported that the majority of her pain was in her legs, back and
hips at that time. (Ex B6F/8). Examination findings were consistent with
previous findings. (Ex. B6F/9). The doctor noted that the claimant sat
13

comfortably in no acute distress. (Ex. B6F/9). The claimant again underwent
acupuncture for her pain. (Ex. B6F/10).
Medical records from her family practitioner during this time show that she was
prescribed medication, including Vicodin, for her pain. (Ex. B8F). A note from
November 2013 states that she had been weaned off Vicodin for a short period
but that she could not tolerate the pain. (Ex. B8F/4). At a visit to the family
practitioner in March 2014, the claimant reported that she was doing well with
her pain medication. (Ex. B8F/19).
In October 2014, the claimant visited her family practitioner and reported that
she did not think she was making progress with her then specialist. (Ex. B14F/
11). She reported breakthrough pain in her legs and back. (Ex. B14F/11). The
doctor recommended that she wean off medication and consult another
specialist. (Ex. B14F/ 12).
In December 2014, the claimant consulted a rheumatologist regarding her
fibromyalgia and reports of joint and muscle pain. (Ex. B15F/2). Upon
examination, there were multiple positive tender points consistent with
fibromyalgia but no evidence of muscle weakness. (Ex. B15F/3). There was
also tenderness of the left wrist. (Ex. B15F/3). X-rays of the hands did not show
evidence of inflammatory arthritis. (Ex. B15F/4). The rheumatologist stated that
there was no evidence of inflammatory arthritis on examination and that the
claimant’s symptoms were consistent with fibromyalgia. (Ex. B15F/4).
In August 2015, the claimant visited one of her doctors and reported back pain
that radiated down her bilateral legs and swollen legs. (Ex. B21F/ 10). Upon
examination, the examining doctor noted an exaggeratedly antalgic gait. (Ex.
B21F/ 13). There was no edema of the lower extremities. (Ex. B21F/13). There
was tenderness of multiple tender points and across the lumbar paraspinal region.
(Ex. B21F/13). She also had limited range of motion of the lumbar spine. (Ex.
B21F/ 13). The doctor also noted that the claimant reported that she could not
shave her legs due to pain but that the claimant’s legs were shaved at the
examination. The doctor further noted that the claimant reported that she could
not care for her hair due to pain but that the claimant’s hair was up. (Ex.
B21F/13). The doctor advised her to exercise to treat her fibromyalgia pain.
(Ex. B21F/ 14).
The medical records also show that the claimant engaged in physical therapy for
her pain, especially her back pain. (Ex. B22F; B23F). She was discharged from
therapy in October 2015 and reported improved movement and strength. (Ex.
B22F/1 l). In October 2015, the claimant again consulted a rheumatologist, who
again determined that the claimant’s symptoms were due to fibromyalgia rather
than inflammatory arthritis. (Ex. 12F). Examinations showed positive tender
points but no synovitis. (Ex. B24F/3, 12).

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…
The medical records show that on August 1, 2013, the claimant went to the
emergency room due to a headache and fibromyalgia pain. (Ex. B3F/7) . A CT
scan of the head was negative. (Ex. B3F/10; BlOF/22) . At a doctor visit in
October 2013, the claimant reported a history of migraines that were worsening.
(Ex. B6F/15). She reported increased headache pain with light and noise and
nausea associated with bad headaches. (Ex. B6F/ 16). She reported that she had
headaches up to three times per week. (Ex. B6F/ 16). The doctor prescribed
medication for her headaches, including Topamax and Imitrex. (Ex. B6F/18).
At a follow-up visit in November 2013, the claimant reported that her headaches
had improved. (Ex. B6F/12). The claimant’s medication was continued. (Ex.
B6F/ 13).
In November 2014, the claimant went to the emergency room due to headache
and nausea. (Ex. B12F/17). She was treated with medication and discharged in
good condition. (Ex. B12F/20- 21). The claimant returned to the emergency
room with a headache in December 2014. (Ex. B12F/9). She was again treated
with medication and reported improvement. (Ex. B12F/15). The claimant also
visited her primary care provider in December 2014, who restarted her
prescription for Topamax. (Ex. B14F/ 16).
In March 2015, the claimant visited her primary care provider and reported
migraine headaches for several weeks . (Ex. B14F/25). The doctor prescribed a
new medication for her headaches. (Ex. B14F/26). The claimant again went to
the emergency room due to migraine and nausea in August 2015. (Ex. B13F/1).
She was treated with medication, and her symptoms resolved. (Ex. B13F/6).
….
In addition to the medical factors discussed above, I have considered additional
factors in evaluating the intensity, persistence and limiting effects of the
claimant’s symptoms. The claimant has reported extensive daily activities that
are inconsistent with her allegation that she is unable to work. The claimant’s
medical records indicate that she cares for her disabled brother. (Ex. B5F/13). At
the hearing, the claimant testified that she tries to stay as active as possible but
that there are days that she does nothing but lay down. She testified that she
cooks, cleans, goes grocery shopping and does the laundry with help from her
brother. The claimant testified, however, that she has difficulty making beds due
to problems with her wrist. The claimant testified that before her youngest child
started preschool that she cared for the child without difficulty. She also testified
that she walks one to two blocks when she is able. While these activities do not
directly translate to the ability to perform work activity at a specific exertional
level or the ability to do a specific job, they do suggest that the claimant’s
abilities are greater than alleged.

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As shown above, the claimant’s doctor noted inconsistencies between the alleged
intensity of the claimant’s symptoms and her appearance and demeanor at
examinations. For instance, an exaggeratedly antalgic gait was noted. (Ex.
B21F). In addition, the doctor noted that the claimant’s legs were shaved and
her hair was up despite the claimant’s reports of difficulties performing these
tasks. At the hearing, the claimant testified that her husband helped her shave
her legs and that she puts her hair up very messily.
(Tr. 61–65, PAGEID #: 105–09).
Plaintiff’s argument that this analysis is insufficient is similar to one recently raised in
Belcher v. Comm’r of Soc. Sec., No. 1:16-cv-944, 2017 U.S. Dist. LEXIS 119249, at *19–20
(W.D. Mich. July 31, 2017). There, the Court noted that “the ALJ provided an extensive
evaluation of Plaintiff’s credibility and applied the two-step process called for in SSR 96-7p,
1996 SSR LEXIS 4 and SSR 12-2p, 2012 SSR LEXIS 1.” The Court went on to note “[t]his was
all that the ruling required on this record, and therefore Plaintiff’s claim that the ALJ failed to
properly apply SSR 12-2p, 2012 SSR LEXIS 1 is without merit.” Id.
The Court comes to the same conclusion here. Consistent with 20 C.F.R. § 404.1529 and
SSR 12-2p, the ALJ explained how Plaintiff’s daily activities, statements to medical
professionals, treatment history, medication usage, examination findings, and imaging studies
undermined Plaintiff’s allegations of work-preclusive limitations. Plaintiff mischaracterizes the
ALJ’s decision as being too focused on objective findings. (Doc. 12 at 15). The opinion shows
otherwise, and the undersigned concludes that the ALJ’s analysis was reasonable and supported
by substantial evidence. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003)
(noting that an ALJ “is not required to accept a claimant’s subjective complaints and may
properly consider the credibility of a claimant when making a determination of disability”).

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C. Step-Five Analysis
Plaintiff next argues that the ALJ erred at step five. At this step of the sequential
evaluation process, the ALJ need only establish that a claimant can perform “other work.” 20
C.F.R. § 404.1520(f). This burden is met if the ALJ establishes that there is at least one job
existing in significant numbers in the national economy that the claimant can perform. 20 C.F.R.
§ 404.1566(b). Here, the ALJ found that Plaintiff was not disabled based on the vocational
expert’s testimony that she could perform a significant number of sedentary jobs as a letter
addresser, a document preparer, and a surveillance system monitor, given the residual functional
capacity. (Tr. 68, PAGEID #: 112).
Plaintiff argues the ALJ’s step-five finding is flawed because the vocational expert
testified that employers would tolerate no more than five absences per twelve month period, but
when starting a job during the probationary period, as few as two absences may be grounds for
dismissal.

(Doc. 12 at 20 (relying on Tr. 136)).

The ALJ’s residual functional capacity

contained a restriction that Plaintiff would be absent from work up to one time per month but no
more than five times per year due to her migraines. (Tr. 60, PAGEID #: 104). Plaintiff argues
that the ALJ’s RFC is unclear regarding whether Plaintiff’s absences would occur in close
proximity to one another, with the possibility that her absences would have two absences in two
successive months during her probationary period which would be work preclusive. (Doc. 12 at
20).
Plaintiff’s suggestion that she may experience headaches causing two absences during an
undefined probationary period is speculative. Besides Plaintiff’s self-reporting, Plaintiff has
identified nothing in the record to indicate that frequent headaches would cause excessive
absenteeism. Although the ALJ found that Plaintiff’s headaches were a severe impairment (Tr.

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58), she also found that her subjective complaints about the limitations imposed by those
headaches were not entirely credible. Accordingly, this case is similar to Ditmer v. Astrue, No.
10-877, 2012 WL 642851, *5 (S.D. Ohio Feb. 28, 2012). There, the Court rejected a similar
argument:
In this case, there was no evidence in the record, other than her own testimony,
that Plaintiff’s headaches and migraines will cause excessive absenteeism and,
therefore, preclude her from working. In other words, there are no medical source
opinions, of any kind, that indicate that Plaintiff’s migraine headaches will cause
excessive absenteeism. Thus, while the ALJ found that Plaintiff’s migraine
headaches are a severe impairment, he also found that her subjective complaints
about the limitations imposed by those headaches are overstated. Having
discounted Plaintiff’s credibility on the limitations imposed by her headaches,
there was no evidentiary basis upon which to conclude that she would experience
excessive absenteeism.
Moreover, at the hearing, the ALJ asked if Plaintiff recorded her headaches in some way,
and she responded no. In addition, Plaintiff has not provided any evidence from any medical
source that she would have more limitations during the relevant period, due to her headaches or
other impairments. The ALJ ultimately concluded:
Regarding the claimant’s migraines, the claimant’s allegations regarding the
frequency and intensity of her headaches is not consistent with the medical
evidence. The medical evidence shows some emergency room visits and other
doctor visits due to headaches but that the claimant’s headaches were generally
controlled with medication.
(Tr. 63, PAGEID #: 107).
Consequently, the Court finds that substantial evidence supports the ALJ’s step-five
conclusion.
IV.

CONCLUSION
Based upon the foregoing, it is RECOMMENDED that Plaintiff’s Statement of Errors

(Doc. 12) be OVERRULED, and that judgment be entered in favor of Defendant.

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V.

PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C.
§ 636(b)(1). Failure to object to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and Recommendation de novo, and also
operates as a waiver of the right to appeal the decision of the District Court adopting the Report
and Recommendation. See Thomas v. Arn, 474 U.S. 140, 152–53 (1985).
IT IS SO ORDERED.
Date: March 7, 2018

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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